9911796707
TMI Blog1988 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... y legal infirmity. The sales tax revision is accordingly dismissed but there shall be no order as to costs. - Civil Appeal No. 2506 of 1988, - - - Dated:- 25-7-1988 - SABYASACHI MUKHARJI, RANGANATHAN S., MEHROTRA V.K. AND KHARE V.N. JJ. S.C. Manchanda, Senior Advocate (Ashok K. Srivastava, Advocate, with him), for the appellant. -------------------------------------------------- The judgment of the Court was delivered by SABYASACHI MUKHARJI, J.- Notice was issued on this special leave application stating that the matter would be disposed of finally at the notice stage itself. None has appeared pursuant to the notice. We have considered the matter and heard Shri Manchanda, counsel for the petitioner. Special leave is granted and the appeal is disposed of by the judgment herein. This appeal arises from the judgment and order of the High Court of Allahabad dated 18th August, 1982. The said judgment was delivered on a revision application filed before the High Court. The application related to the assessment year 1977-78 under the U.P. Sales Tax Act. The first question involved before the High Court of Allahabad was whether the purchase of pulses effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -C(2). Clause (b) of sub-section (7) of section 3-D provides as follows: "Every sale within Uttar Pradesh by a dealer, either directly or through another, whether on his own account or on account of any one else, shall, for the purposes of sub-section (2), be deemed to be a sale to a person other than a registered dealer, unless the dealer selling the goods proves otherwise to the satisfaction of the assessing authority after having furnished such declaration or certificate, obtained from the purchaser of such goods, in such form and manner and within such period, as may be prescribed." Under the said section, declaration forms have been prescribed by rule 12-B. It appears that this question stands concluded so far as the U.P. is concerned, by a Bench decision of the said High Court in the case of Govind Ram Tansukh Rai Co. v. Commissioner of Sales Tax (printed at page 4 infra); 1985 UPTC 1060. There, after considering the aforesaid two decisions of the learned single judges, the Division Bench held that if the assessee had not furnished the required declaration forms in order to be entitled for exemption, the assessee could not file any other evidence which required to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the absence of the dealer furnishing form III-C(2), the assessee could get tax exemption by furnishing other documentary evidence on the tax-paid purchases made by him. The applicant-assessee is a dealer in foodgrains. The applicant dec- lared its turnover in the assessment year 1974-75 at Rs. 16,50,860.10. The assessee claimed to have made the tax-paid purchases of Rs. 47,808 from three dealers of the district Etah. The transactions amounting to Rs. 47,803 of the purchase were disallowed by the Sales Tax Officer as the assessee failed to produce necessary form III-C(2) although his books of account were accepted. Consequently the turnover was increased to Rs. 16,98,568.09. The appeal against that assessment order was dismissed. A second appeal filed against that order met the same fate. The Sales Tax Tribunal was of the view that for claiming exemption under section 3-D(7), it is necessary for the dealer to have filed form III-C(2) which is mandatory and in absence of which no tax exemption can be allowed. The Tribunal was also of the view that it is not open to the assessee to examine other evidences to rebut the presumption contained in section 3-D(7)(a) of the Act and in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, formalities or conditions shall be complied with and it seems neither unjust nor incorrect to exact a rigorous observance of them as essential to the acquisition of right, such provision of statute or rule has been held to be imperative (see Maxwell on Interpretation of the Statutes, VI Edition, page 649). In Sharif-ud-Din v. Abdul Gani Lone AIR 1980 SC 303 it was held that where a provision of law prescribed that certain act has to be done in a particular manner by a person in order to acquire a right, benefit or a privilege, it is to be regarded as mandatory. This being a recognised test for determining statute, i.e., imperative and that which is merely directory, let us look into the provision of the statute. Section 3-D(7)(a) and relevant portion of rule 12-B framed under the Act is quoted hereunder: "Section 3-D(7)(a). Every purchase within Uttar Pradesh by a dealer, either directly or through another, whether on his own account or on account of any one else, shall for the purposes of clause (b) of sub-section (1), be deemed to be the first purchase, unless the dealer proves otherwise to the satisfaction of the assessing authority after having furnished such declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In our opinion the test as noticed earlier is applicable to the present case. If an assessee wants to take benefit of exemption of payment of sales tax he has to comply with the provisions of the Act which is essential to the acquisition of right or privilege and it has got to be complied with. The legislative history of section 3-D(7)(a) also leads to the same conclusion. The present section 3-D(7)(a) has been substituted by U.P. Act No. 11 of 1972 and prior to that this section read as under: "Sub-section (7). Unless the dealer proves otherwise to the satisfaction of the assessing authority, every purchase by or through a dealer shall, for the purposes of sub-section (1), be presumed to be the first purchase by such dealer and every sale through a dealer shall, for the purposes of sub- section (2), be presumed to be sale to a first purchaser." A perusal of the aforesaid sub-section shows that there was no provision for rebutting the presumption and further the mode of proof provided for rebutting the presumption was also not provided and, therefore, by the aforesaid amendment of section 3-D(7)(a) the legislature has now provided that the presumption can be rebutted in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (7) of section 3-D such a provision has been clearly made and the presumption is to be rebutted in the manner provided under the rule 12-B. We, therefore, are of the opinion that this case is distinguishable. The next decision reported in Sharif-ud-Din v. Abdul Gani Lone AIR 1980 SC 303 relied upon by the counsel for the applicant does not support his contention and is of no help to the case of the applicant. On the contrary it helps the case of the department. In this case it was laid down that where a provision of law prescribed that certain act has to be done in a particular manner by a person in order to acquire a right, it is to be regarded as mandatory. The third decision relied on by counsel for the applicant reported in 1981 UPTC 227 is also distinguishable and does not advance the case of applicant. The sheet-anchor of applicant's case is a decision by a learned single Judge of this Court reported in Abdul Ghani Banney Khan v. Commissioner of Sales Tax 1982 UPTC 665. In this case the learned single Judge observed thus: "For instance 'A' sells to 'B' and 'B' furnishes the necessary declaration forms but they are lost or destroyed in fire. Could the assessee be den ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
